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Monday, 17 February 2014

Mitchell - A Glimmer of Sanity?

It is a few months since the Court of Appeal judgement in the case of Mitchell changed the face of Civil Justice in this country –

Since that judgement the courts have been swamped with applications. This was predicted by most commentators. The whole focus has moved from the merits of an individual case to an obsessive fear of missing deadlines or getting the wording wrong on documents.

In my earlier blog I mentioned the case of Romano v k Papers (Blackburn) Ltd where HHJ Gore struck out a claim where a deadline had been missed by one day  in particularly difficult circumstances.  

One recent case has highlighted attempts to take matters to even more ridiculous lengths. In the commercial case of Lakatamia Shipping Co Ltd v Nobu Su & Ors there was a delay by Defendants, of just 45 minutes in dealing with disclosure of documents. The claimants took the point and argued that the case should be struck out. The High Court found in favour of the defendants. The delay was trivial. Interestingly Hamblen J. found that there was no prejudice caused by the delay. This could be a some small encouragement as there was no hint of prejudice in the Romano case. In that case the prejudice was suffered by the court administration which had to find time to deal with the application for relief. Presumably the court faced similar issues in the Lakatamia case.

In another recent case - The Bank of Ireland & Anor v Philip Pank Partnership [2014] EWHC 284, Mr Justice Stuart-Smith has commented that there a risk in some cases that 

‘ …Such a conclusion would, in my judgment, serve only to bring the rules of procedure and the law generally into disrepute.’

I would suggest the damage to our civil justice system has already been done. The world changed when the Master of the Rolls said in Mitchell –

There now has to be a shift away from exclusively focussing on doing justice in the individual case”.

There is a real risk that our civil courts are becoming more concerned about dates and forms than about Justice. Indeed we should then stop calling it a civil justice system.

Is it too much to hope for that this decision in Lakatamia suggests a glimmer of sanity? 

Maybe things will begin to settle down. But is certainly a long way back to the real world. In the meantime the courts will be dealing with more and more satellite hearings and the cost of litigation will go through the roof.

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